Citation Nr: 0906918
Decision Date: 02/25/09 Archive Date: 03/05/09
DOCKET NO. 05-13 551 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in
Albuquerque, New Mexico
THE ISSUES
1. Entitlement to service connection for bilateral hearing
loss.
2. Entitlement to service connection for tinnitus.
3. Entitlement to service connection for prostate cancer and
residuals, including impotence and metastatic bone cancer, to
include as due to herbicide exposure.
4. Entitlement to an initial compensable rating for
hemorrhoids.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Michael T. Osborne, Counsel
INTRODUCTION
The Veteran had active service from November 1956 to December
1975.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal of a November 2004 rating decision issued
by the Department of Veterans Affairs (VA) Regional Office
(RO) in Albuquerque, New Mexico, which granted the Veteran's
claim of service connection for hemorrhoids, assigning a
noncompensable rating effective September 10, 2003, and
denied the Veteran's claims of service connection for
bilateral hearing loss, tinnitus, a lung disability, and for
prostate cancer and its residuals, including impotence and
metastatic bone cancer, to include as due to herbicide
exposure. The Veteran disagreed with this decision later in
November 2004. When he perfected a timely appeal in April
2005, the Veteran limited his appeal to the denial of service
connection for bilateral hearing loss, tinnitus, and for
prostate cancer and its residuals, including impotence and
metastatic bone cancer, to include as due to herbicide
exposure. Thus, the issue of service connection for a lung
disability is no longer in appellate status.
The Veteran's contends that he was exposed to herbicides
while serving in the waters offshore of Vietnam aboard
U.S.S. INDEPENDENCE and U.S.S. CONSTELLATION. The Board
notes that the United States Court of Appeals for Veterans
Claims (Court) issued a decision in Haas v. Nicholson,
20 Vet. App. 257 (2006), reversing a Board decision which
denied service connection for disabilities claimed as a
result of exposure to herbicides. VA disagreed with Haas and
appealed to the United States Court of Appeals for the
Federal Circuit (Federal Circuit). To avoid burdens on the
adjudication system, delays in the adjudication of other
claims, and unnecessary expenditure of resources through
remand or final adjudication of claims based on court
precedent that may ultimately be overturned on appeal, on
September 21, 2006, the Secretary of Veterans Affairs imposed
a stay at the Board on the adjudication of claims affected by
Haas. The specific claims affected by the stay include those
involving claims based on herbicide exposure in which the
only evidence of exposure is the receipt of the Vietnam
Service Medal or service on a vessel off the shore of
Vietnam.
In May 2008, the Federal Circuit reversed the Court's earlier
decision in Haas and found that VA's requirement that a
claimant have been present within the land borders of Vietnam
to obtain the benefit of the presumption of herbicide
exposure was a permissible interpretation of the governing
statute and its implementing regulation. Haas v. Peake, 525
F.3d. 1168 (Fed.Cir.2008) cert. denied --- U.S. ----, 77
U.S.L.W. 3267 (Jan. 21, 2009). VA's Office of General
Counsel advised the Board that, because the Court concluded
in Ribaudo v. Nicholson, 21 Vet. App. 137, 146-47 (2007),
that all claims at VA subject to the original Haas stay will
remain stayed until mandate issues in the Federal Circuit's
decision in Haas, such claims should not be adjudicated until
mandate issues at the Federal Circuit. Accordingly, the
Veteran's appeal was stayed in July 2007 and he was notified
of the Haas stay that same month. Because VA's Office of
General Counsel recently advised the Board that, as the Haas
litigation has concluded, VA may proceed to adjudicate claims
previously subject to the Haas stay, the Board will proceed
to adjudicate this appeal.
The issue of entitlement to an initial compensable rating for
hemorrhoids is addressed in the REMAND portion of the
decision below and is REMANDED to the RO via the Appeals
Management Center (AMC), in Washington, DC. VA will notify
the Veteran if further action is required on his part.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the Veteran's appeal has been obtained.
2. The Veteran's service personnel records do not show that
his service included in-country duty or visitation in
Vietnam.
3. The competent evidence does not demonstrate that the
Veteran's current bilateral hearing loss and tinnitus are
causally related to active service.
4. The competent evidence does not demonstrate that the
Veteran's current prostate cancer, first shown many years
after service, is causally related to active service, to
include in-service herbicide exposure.
CONCLUSIONS OF LAW
1. Bilateral hearing loss was not incurred in active
service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137, 5103,
5103A, 5107 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.303,
3.304, 3.307, 3.309, 3.385 (2008).
2. Tinnitus was not incurred in active service. 38 U.S.C.A.
§§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2008);
38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2008).
3. Prostate cancer and its residuals, to include impotence
and metastatic bone cancer, was not caused or aggravated by
in-service herbicide exposure. 38 U.S.C.A. §§ 1101, 1110,
1112, 1131, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2008);
38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2008).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Before assessing the merits of the appeal, VA's duties under
the Veterans Claims Assistance Act of 2000 (VCAA) must be
examined. The VCAA provides that VA shall apprise a claimant
of the evidence necessary to substantiate his claim for
benefits and that VA shall make reasonable efforts to assist
a claimant in obtaining evidence unless no reasonable
possibility exists that such assistance will aid in
substantiating the claim.
In letters dated in November 2003 and in April 2005, VA
notified the Veteran of the information and evidence needed
to substantiate and complete his claims, including what part
of that evidence he was to provide and what part VA would
attempt to obtain for him. See 38 U.S.C.A. § 5103(a); 38
C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet.
App. 183, 187 (2002). These letters informed the Veteran to
submit medical evidence relating his claimed disabilities to
active service, evidence documenting his claimed in-country
service in Vietnam, and noted other types of evidence the
Veteran could submit in support of his claims. The Veteran
also was informed of when and where to send the evidence.
After consideration of the contents of these letters, the
Board finds that VA has satisfied substantially the
requirement that the Veteran be advised to submit any
additional information in support of his claims. See
Pelegrini v. Principi, 18 Vet. App. 112 (2004).
Although the notification did not advise the Veteran of the
laws regarding degrees of disability or effective dates for
any grant of service connection, the Board finds that failure
to satisfy the duty to notify in that regard is not
prejudicial. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir.
2007). As will be explained below, the evidence does not
support granting service connection for bilateral hearing
loss, tinnitus, or for prostate cancer, including as
secondary to herbicide exposure. Thus, any failure to notify
and/or develop these claims under the VCAA cannot be
considered prejudicial to the Veteran. See Bernard v. Brown,
4 Vet. App. 384, 394 (1993). The claimant also has had the
opportunity to submit additional argument and evidence and to
participate meaningfully in the adjudication process.
Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Thus,
the Board finds that VA met its duty to notify the appellant
of his rights and responsibilities under the VCAA.
The Board also finds that VA has complied with the VCAA's
duty to assist by aiding the Veteran in obtaining evidence
and affording him the opportunity to give testimony before
the RO and the Board, although he declined to do so. It
appears that all known and available records relevant to the
issues on appeal have been obtained and are associated with
the Veteran's claims file; the Veteran does not contend
otherwise.
Regarding the duty to provide an examination and/or seek a
medical opinion, the Board notes that in the case of a claim
for disability compensation, the assistance provided to the
claimant shall include providing a medical examination or
obtaining a medical opinion when such examination or opinion
is necessary to make a decision on the claim. An examination
or opinion shall be treated as being necessary to make a
decision on the claim if the evidence of record, taking into
consideration all information and lay or medical evidence
(including statements of the claimant) contains competent
evidence that the claimant has a current disability, or
persistent or recurring symptoms of disability; and indicates
that the disability or symptoms may be associated with the
claimant's act of service; but does not contain sufficient
medical evidence for VA to make a decision on the claim. 38
U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); see also
McLendon v. Nicholson, 20 Vet. App. 79 (2006).
The Veteran has been provided a VA examination to evaluate
the contended causal relationship between active service and
his current bilateral hearing loss and tinnitus. Because
there is no medical evidence suggesting that the Veteran's
prostate cancer and its residuals, to include impotence and
metastatic bone cancer, may be causally related to active
service, including as secondary to herbicide exposure, the
Board finds that additional examinations are not required.
In summary, VA has done everything reasonably possible to
notify and to assist the Veteran and no further action is
necessary to meet the requirements of the VCAA.
Discussion
The Board has reviewed all of the evidence in the claims
folder. Although the Board has an obligation to provide
reasons and bases supporting this decision, there is no need
to discuss, in detail, the extensive evidence of record.
Indeed, the Federal Circuit has held that the Board must
review the entire record, but does not have to discuss each
piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81
(Fed. Cir. 2000). Therefore, the Board will summarize the
relevant evidence where appropriate, and the Board's analysis
below will focus specifically on what the evidence shows, or
fails to show, as to each claim.
The Veteran contends that he incurred bilateral hearing loss
and tinnitus due to in-service noise exposure and, while on
active service in the waters offshore of Vietnam, he was
exposed to herbicides which caused his subsequent prostate
cancer.
Service connection may be granted if the evidence
demonstrates that a current disability resulted from an
injury or disease incurred or aggravated in active military
service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).
Service connection may also be established for disease
diagnosed after discharge from service when all the evidence
establishes that the disease was incurred in service.
38 C.F.R. § 3.303(d).
Certain chronic diseases, including cancer, are presumed to
have been incurred in service if manifest to a compensable
degree within one year of discharge from service. 38
U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a).
Impaired hearing is considered a disability for VA purposes
when the auditory threshold in any of the frequencies 500,
1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or
greater or where the auditory thresholds for at least three
of these frequencies are 26 dB or greater or when speech
recognition scores are less than 94 percent. 38 C.F.R.
§ 3.385.
If there is no evidence of a chronic condition during service
or an applicable presumptive period, then a showing of
continuity of symptomatology after service may serve as an
alternative method of establishing the second and/or third
element of a service connection claim. See 38 C.F.R. §
3.303(b); Savage v. Gober, 10 Vet. App. 488 (1997).
Continuity of symptomatology may be established if a claimant
can demonstrate (1) that a condition was "noted" during
service; (2) evidence of post-service continuity of the same
symptomatology and (3) medical or, in certain circumstances,
lay evidence of a nexus between the present disability and
the post-service symptomatology. Evidence of a chronic
condition must be medical, unless it relates to a condition
to which lay observation is competent. If service connection
is established by continuity of symptomatology, there must be
medical evidence that relates a current condition to that
symptomatology. See Savage, 10 Vet. App. at 495-498.
VA regulations provide that a Veteran who had active
military, naval, or air service in the Republic of Vietnam
during the Vietnam Era shall be presumed to have been exposed
during such service to an herbicide agent, unless there is
affirmative evidence to establish that the Veteran was not
exposed to any such agent during that service. See 38 C.F.R.
§ 3.307(a)(6)(iii). In such circumstances, service
connection may be granted on a presumptive basis for the
diseases listed in 38 C.F.R. § 3.309(e). Prostate cancer is
among the diseases listed in § 3.309 for which presumptive
service connection is available based on in-service herbicide
exposure.
The Secretary of Veterans Affairs also has determined that
there is no positive association between exposure to
herbicides and any other condition for which he has not
specifically determined a presumption of service connection
is warranted. See Diseases Not Associated with Exposure to
Certain Herbicide Agents, 67 Fed. Reg. 42,600 (June 24,
2002). Notwithstanding the foregoing, the Federal Circuit
has determined that the Veteran's Dioxin and Radiation
Exposure Compensation Standards (Radiation Compensation) Act,
Pub. L. No. 98-542, § 5, 98 Stat. 2725, 2727-29 (1984) does
not preclude a Veteran from establishing service connection
with proof of direct causation. See Combee v. Brown, 34 F.3d
1039 (Fed. Cir. 1994). The rationale employed in Combee also
applies to claims based on exposure to Agent Orange. See
Brock v. Brown, 10 Vet. App. 155 (1997).
A review of the Veteran's service treatment records indicate
a normal physical evaluation upon enlistment in November 1956
except for third degree pes planus and several marks and
scars. The Veteran's hearing (whispered voice) was 15/15 (or
normal) bilaterally.The Veteran denied all relevant medical
history at that time.
On periodic physical examination in December 1960, clinical
evaluation was unchanged. The Veteran's hearing (whispered
voice) was 15/15 (or normal) bilaterally.
On periodic physical examination in October 1966, the
Veteran's hearing (whispered voice) was 15/15 (or normal)
bilaterally. His pure tone thresholds, in decibels, were as
follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
10
10
5
25
45
LEFT
15
10
10
15
40
On periodic physical examination in July 1972, the Veteran's
pure tone thresholds, in decibels, were as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
20
0
0
15
25
LEFT
10
0
0
10
25
It was noted that the Veteran had high frequency hearing loss
in both ears but this was not considered disabling. Hearing
conservation was recommended.
At the Veteran's separation physical examination in November
1975, the Veteran's pure tone thresholds, in decibels, were
as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
10
5
5
15
15
LEFT
10
5
5
5
25
The Veteran's service personnel records show that, as a crew
member on board U.S.S. INDEPENDENCE (CVA-62) between May and
December 1965, he was authorized to wear the Armed Forced
Expeditionary Medal "for operations in the Southeast Asia
area of operations while attached to Task Force SEVENTY-SEVEN
in support of operations in Vietnam." The Veteran also was
authorized to wear the Republic of Vietnam Campaign Medal
with Device (196) and the Vietnam Service Medal. These
records also show that he commenced a period of sea duty as a
member of Reconnaissance Attack Squadron Twelve on
November 9, 1971. The Veteran's DD Form 214 shows that his
military occupational specialty (MOS) was aviation ordnance
man.
The post-service medical evidence shows that the Veteran
received several courses of radiation chemotherapy to treat
prostate cancer beginning in 2002. A private pathology
report in February 2002 contained a diagnosis of
adenocarcinoma of the prostate. On private outpatient
treatment in March 2002, it was noted that the Veteran had
had an elevated prostate specific antigen (PSA) level in
December 2001 and had been referred for prostate biopsies.
These biopsies had found diffuse involvement of the prostate
with cancer. The assessment was high grade adenocarcinoma of
the prostate. In June 2002, it was noted that the Veteran
had completed radiation therapy and tolerated it very well.
The assessment was unchanged. In August 2002, the Veteran
returned for routine follow-up after completing 3 courses of
radiation treatment for prostate cancer. The assessment was
high grade adenocarcinoma of the prostate.
A VA Form 119, "Report of Contact," dated in November 2003
shows that the Veteran reported serving in the waters
offshore of Vietnam as a crew member on board U.S.S.
INDEPENDENCE and U.S.S. CONSTELLATION. In statements on a
November 2003 VA 21-4138, the Veteran contended that he had
served on board U.S.S. INDEPENDENCE in 1965 "in the waters
of South Vietnam and North Vietnam." His duties had been on
the flight deck "day and night. We were very close to the
land at many times with windy conditions. In 1973, I was in
the waters of South Vietnam and North Vietnam on board the
USS CONSTELLATION. My duties were on the flight deck under
windy conditions where we were very close to the land."
In response to a request from the RO for documentation of the
Veteran's claimed in-service herbicide exposure, the National
Personnel Records Center (NPRC) in St. Louis, Missouri,
notified VA in November 2003 that no such records existed.
In statements on a VA Form 21-4138 date-stamped as received
by the RO in December 2003, the Veteran contended that he had
"worked with and around military aircraft for over 20
years." He reported difficulty hearing anything and
constant ringing in his ears.
In December 2003, the Veteran submitted multiple copies of
"Explanation of Benefits" forms from a private insurance
company. A review of these records shows that he annotated
most of them with notes that they showed his treatment for
residuals of prostate cancer, to include impotence.
On VA audiology examination in January 2004, the Veteran's
complaints were difficulty hearing speech "and that he often
needs people to repeat what has been said" and constant
bilateral tinnitus. The VA examiner reviewed the Veteran's
claims file, including his service treatment records. The VA
examiner noted the Veteran's in-service whispered voice
hearing test results. The Veteran reported in-service noise
exposure aboard aircraft carriers, from the flight deck, and
from equipment used in maintenance and ordnance. He also
reported in-service noise exposure from frequent target
shooting. He reported that he wore hearing protection during
active service "but that this seemed inadequate,
particularly when working close behind aircraft." The
Veteran denied any post-service noise exposure. The
Veteran's pure tone thresholds, in decibels, were as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
20
25
40
70
90
LEFT
5
5
15
35
85
Speech audiometry revealed speech recognition ability of 90
percent in the right ear and of 94 percent in the left ear.
The Veteran had normal middle ear pressure with slight
hypercompliance in the right ear and within normal limits in
the left ear. The VA examiner opined that, because the
Veteran's hearing was normal at his separation physical
examination in November 1975, it was less likely than not
that his hearing loss and tinnitus resulted from in-service
noise exposure. This examiner also opined that it was more
likely that the Veteran's hearing loss and tinnitus resulted
from post-service noise exposure. The diagnosis was
sensorineural hearing loss for high frequencies, worse in the
right ear than in the left ear.
The Board finds that the preponderance of the evidence is
against the Veteran's claims of service connection for
bilateral hearing loss and for tinnitus. Although the
Veteran had high frequency hearing loss in both ears on
periodic physical examination in July 1972, the in-service
examiner stated that this was not considered disabling.
Moreover, subsequent service treatment records failed to show
high frequency hearing loss. In fact, the VA examiner
determined in January 2004 that the Veteran's July 1972
audiogram showed normal hearing. The Veteran's service
treatment records also show no complaints of, or treatment
for, tinnitus at any time during his 19 years of active
service. It appears that the Veteran first was treated for
bilateral hearing loss and for tinnitus in January 2004, more
than 28 years after his service separation in December 1975,
when he was seen by VA.
With respect to negative evidence, the fact that there was no
record of any complaint, let alone treatment, involving the
Veteran's condition for many years is significant. See
Maxson v. West, 12 Vet. App. 453, 459 (1999), affirmed sub
nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000)
(holding that it was proper to consider the Veteran's entire
medical history, including a lengthy period of absence of
complaints).
The post-service medical evidence shows that, when examined
by VA in January 2004, the Veteran had bilateral high
frequency hearing loss and also complained of tinnitus.
After reviewing the claims file and noting the Veteran's in-
service noise exposure, the VA examiner concluded that,
because the Veteran's hearing was normal at his separation
physical examination in November 1975, it was less likely
than not that either his bilateral hearing loss or tinnitus
was related to active service. There is no competent
contrary opinion of record. In summary, absent a medical
nexus between the Veteran's current bilateral hearing loss or
tinnitus and active service, the Board finds that service
connection for bilateral hearing loss and for tinnitus is not
warranted. Moreover, a grant of presumptive service
connection for sensorineural hearing loss as a chronic
disease (organic disease of the nervous system) is not
warranted as such hearing loss was not manifested to a degree
of 10 percent or more during the first post-service year.
See 38 C.F.R. § 3.307(a)(3); 38 C.F.R. § 3.309(a).
The Board also finds that the preponderance of the evidence
is against the Veteran's claim of service connection for
prostate cancer and its residuals, to include impotence and
metastatic bone cancer, including as secondary to herbicide
exposure. Initially, the Board notes that the Veteran's
service personnel records do not show that he had qualifying
in-country service in Vietnam such that his herbicide
exposure can be presumed and his prostate cancer can be
related to active service on a presumptive service connection
basis. See 38 C.F.R. §§ 3.307, 3.309. These records show
instead that the Veteran served in the waters offshore of
Vietnam aboard U.S.S. INDEPENDENCE (CVA-62) between May and
December 1965 and was authorized to wear the Armed Forced
Expeditionary Medal "for operations in the Southeast Asia
area of operations while attached to Task Force SEVENTY-SEVEN
in support of operations in Vietnam." The Veteran also was
awarded the Republic of Vietnam Campaign Medal with Device
(1960) and the Vietnam Service Medal. There is no evidence
in these records that the conditions of the Veteran's
honorable active service aboard U.S.S. INDEPENDENCE in the
waters offshore of Vietnam "involved duty or visitation in
the Republic of Vietnam." The Board also notes that,
although the Veteran has contended that he served in the
waters offshore of Vietnam aboard U.S.S. CONSTELLATION in
1973, there is no indication in his service personnel records
that he served aboard this ship. NPRC also has confirmed
that there are no official records documenting the Veteran's
claimed in-service herbicide exposure.
Given the foregoing, the Board finds that the circumstances
of the Veteran's service aboard U.S.S. INDEPENDENCE do not
meet the regulatory definition of "service in Vietnam"
found in 38 C.F.R. § 3.307(a)(6)(iii) and upheld by the
Federal Circuit in Haas. See Haas v. Peake, 525 F.3d. 1168
(Fed.Cir.2008) cert. denied --- U.S. ----, 77 U.S.L.W. 3267
(Jan. 21, 2009). (finding VA's definition of "service in
Vietnam" requiring in-country service in Vietnam
permissible); see also 38 C.F.R. § 3.307(a)(6)(iii) (2008).
This regulation (38 C.F.R. § 3.307(a)(6)(iii)) provides that
service in Vietnam "includes service in the waters
offshore...if the conditions of service involved duty or
visitation in the Republic of Vietnam." Id. (emphasis
added). Thus, the Veteran's in-service herbicide exposure
cannot be presumed and his prostate cancer cannot be related
to active service on a presumptive basis.
Further, the medical evidence shows that the Veteran was not
treated for prostate cancer during his 19 years of active
service or within the first post-service year. Thus, service
connection for prostate cancer on a presumptive service
connection basis as a chronic disease also is not warranted.
Id. The post-service medical evidence shows instead that the
Veteran first was treated for prostate cancer in 2002, or
approximately 27 years after his service separation in
December 1975, when he began chemotherapy treatment for high
grade prostate cancer. See Maxson, 230 F.3d at 1333. More
importantly, none of the Veteran's post-service treating
physicians have related his current prostate cancer or any
residuals, to include impotence and metastatic bone cancer,
to active service or any incident of such service, to include
his claimed herbicide exposure. In summary, without evidence
that his active service involved duty or visitation in
Vietnam, and without a medical nexus opinion linking the
Veteran's current prostate cancer to active service, the
Board finds that service connection for prostate cancer and
its residuals, to include impotence and metastatic bone
cancer, including as secondary to herbicide exposure, is not
warranted.
Additional evidence in support of the Veteran's service
connection claims is his own lay assertions. As a lay
person, however, the Veteran is not competent to opine on
medical matters such as the etiology of medical disorders.
The record does not show, nor does the Veteran contend, that
he has specialized education, training, or experience that
would qualify him to provide an opinion on this matter.
Accordingly, the Veteran's lay statements are entitled to no
probative value. Bostain v. West, 11 Vet. App. 124, 127
(1998); Routen v. Brown, 10 Vet. App. 183, 186 (1997).
Moreover, to the extent that the Veteran is claiming to have
had continuous hearing loss and tinnitus back to the time of
active service, it is acknowledged that he is competent to
give evidence about what he experienced; for example, he is
competent to discuss his current pain and other experienced
symptoms. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994).
Furthermore, lay evidence concerning continuity of symptoms
after service, if credible, is ultimately competent,
regardless of the lack of contemporaneous medical evidence.
Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).
However, the Board finds that the lengthy absence of post-
service treatment after discharge is more probative than the
veteran's recollections of symptoms in the distant past.
Therefore, continuity of symptomatology is not established by
either the competent evidence or the veteran's own
statements.
As the preponderance of the evidence is against the Veteran's
claims, the benefit-of- the-doubt doctrine does not apply. 38
U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet.
App 49, 55-57 (1990).
ORDER
Entitlement to service connection for bilateral hearing loss
is denied.
Entitlement to service connection for tinnitus is denied.
Entitlement to service connection for prostate cancer and its
residuals, including impotence and metastatic bone cancer, to
include as due to herbicide exposure, is denied.
REMAND
The Veteran's most recent VA examination for hemorrhoids
occurred in December 2003. His statements can fairly be
construed as indicating a worsening in symptomatology since
that time. Accordingly, another examination should be
conducted to determine the current level of severity. See
Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); Snuffer v.
Gober, 10 Vet. App. 400, 403 (1997). The RO also should
obtain the Veteran's up-to-date treatment records.
Accordingly, the case is REMANDED for the following action:
1. Ask the Veteran and his service
representative to identify all VA and non-
VA clinicians who have treated him for
hemorrhoids since his separation from
active service. Obtain outstanding VA
treatment records that have not been
associated with the claims file already.
Once signed releases are received from the
Veteran, obtain outstanding private
treatment records that have not been
associated with the claims file already.
A copy of any negative response(s) should
be included in the claims file.
2. Schedule the Veteran for VA
examination(s) to determine the current
nature and severity of his service-
connected hemorrhoids. A copy of the VA
examination notice letter sent to the
Veteran and his service representative
should be included in the claims file. A
copy of the VA examination request also
should be included in the claims file.
The examiner(s) should be asked to
determine whether the Veteran's
hemorrhoids are large or thrombotic,
irreducible, with excessive redundant
tissue, evidencing frequent recurrences,
or are manifested by persistent bleeding
and with secondary anemia, or with
fissures.
3. Thereafter, readjudicate the claim for
an initial compensable rating for
hemorrhoids. If the benefits sought on
appeal remain denied, the Veteran and his
service representative should be provided
a supplemental statement of the case. An
appropriate period of time should be
allowed for response.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim
must be afforded expeditious treatment. The law requires
that all claims that are remanded by the Board of Veterans'
Appeals or by the United States Court of Appeals for Veterans
Claims for additional development or other appropriate action
must be handled in an expeditious manner. See 38 U.S.C.A. §§
5109B, 7112 (West Supp. 2008).
______________________________________________
ERIC S. LEBOFF
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs